Authors

Abstract

This article takes a fresh look at the increasingly discussed topic of the scarcity of civil cases reaching trial in the Article III system. The number of cases tried declined by more than one-fourth in the decade from 1989-1999, and the decline continued at about the same rate to the end of the latest year for which statistics are available, 2002, while ADR (particularly arbitrations) skyrocketed.

The authors examine the history of competing English courts (particularly Common Pleas and King's Bench) for signs that, in fact, market competition can arise among dispute-resolving bodies. They also apply economic analysis to the present flight from jury trials to ADR, examining the role of jury verdicts in the economics of forum choice, especially as relates to the "verdict bubble," i.e., the perception engendered by reports of high-end verdicts.

The authors conclude by suggesting that the federal courts might increase the attractiveness of the jury trial option by offering the possibility of a "select" jury in the appropriate case, with, for example, a venire specially qualified by education or experience in complex or technical cases, for which there is historical precedent.